Sasi, Prakasn, Mani, Asokan and Ajayan v. Damodaran

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **& THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY, THE 16TH DAY OF JULY 2018 / 25TH ASHADHA, 1940** **RCRev..No. 238 of 2018** **AGAINST THE JUDGMENT DATED 31.11.2017 IN RCA 7/2012 of RENT CONTROL APPELLATE AUTHORITY, IRINJALAKUDA** **AGAINST THE ORDER DATED 30.11.2011 IN RCP 20/2010 of RENT CONTROLLER, IRINJALAKUDA** **REVISION PETITIONERS/APPELLANTS/RESPONDENTS(TENANTS):-** **------------------------------------------------------** **1 SASI, S/O.EDAKULATH LATE RAMAN, NEAR EDAKULAM CANAL BRIDGE, POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK.** **2 PRAKASAN, S/O.EDAKULATH LATE RAMAN, NEAR EDAKULAM CANAL BRIDGE, POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK. 3 MANI, S/O.EDAKULATH LATE RAMAN, NEAR EDAKULAM CANAL BRIDGE, POOMANGALAM VILLAGE, MUKUNAPURAM TALUK. 4 ASOKAN, S/O.EDAKULATH LATE RAMAN, NEAR EDAKULAM CANAL BRIDGE, POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK. 5 AJAYAN, S/O.EDAKULATH LATE RAMAN, NEAR EDAKULAM CANAL BRIDGE, POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK.** **BY ADVS.SRI.K.S.BHARATHAN KUM.S.SWATHY** **RESPONDENT/RESPONDENT/PETITIONER(LANDLORD):--------------------------------------------DAMODARAN, S/O.PUTHALLATH NARAYANAN NAMBOODIRI, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.V.M. KRISHNAKUMAR [CAVEATOR]** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **DST** ## **K. HARILAL & ANNIE JOHN,JJ.** **= = = = = = = = = = = = = = = = =** **R.C.R.No.238 of 2018** **- - - - - - -- - - - - - - - - - - - - -** _Dated this the 16[th] day of July, 2018_ ## **O R D E R** ## **K. Harilal, J.** The revision petitioners are the tenants, who are facing an order of eviction concurrently passed by the courts below in R.C.A. No.7 of 2012 of the Rent Control Appellate Authority, Irinjalakuda and R.C.P. No.20 of 2010 of the Rent Control Court, Irinjalakuda. 2. The respondent/landlord filed the aforesaid Rent Control Petition, seeking an order of eviction on the allegation that the revision petitioners ceased to occupy the petition schedule building, without any reasonable cause for the last more than 10 months, immediately preceding the date of filing of the rent control petition. ## **R.C.R. No.238 of 2018** ## **-: 2 :-** 3. The 3[rd] revision petitioner herein admitted that he was conducting business in the petition schedule building up to June, 2010. In June, 2010, his wife met with an accident and she was laid up. Hence, he could not run his textile business. His wife remained hospitalised for two months. Apart from that, his mother is a cancer patient. Thus, the closure of the shop from June, 2010 was on account of the critical illness of his mother and wife. 4. On the aforesaid rival pleadings, both parties adduced evidence, which consists of the oral testimony of PWs.1 to 5, RW.1 and RW.2, documentary evidence Exts.A1, B1 to B3, C1 and C1(a) and Exts.X1 to X7 as courts exhibits. 5. After considering the evidence on record, the courts below concurrently found that the ## **R.C.R. No.238 of 2018** ## **-: 3 :-** respondent has succeeded to discharge his initial burden by proving that the 3[rd] revision petitioner herein ceased to occupy the petition schedule shop room for more than six months, immediately preceding the presentation of the rent control petition and the 3[rd] revision petitioner herein miserably failed to prove reasonable cause for the closure of the shop room for more than six months. The legality and propriety of the aforesaid findings, are assailed in this revision petition. 6. Heard the learned counsel for the revision petitioners and the learned counsel for the respondent. 7. The sum and substance of the arguments advanced by the learned counsel for the revision petitioners is that the courts below miserably failed to appreciate the evidence on record with ## **R.C.R. No.238 of 2018** ## **-: 4 :-** respect to reasonable cause for the closure of the shop room in its correct perspective. According to the learned counsel for the revision petitioners, the 3[rd] revision petitioner has succeeded to prove that the shop room remained closed on account of the critical illness of his mother and wife for a long period. 8. Per contra, the learned counsel for the respondent submits that the courts below have appreciated the evidence on record on reasonable cause for the closure of the shop room put forward by the revision petitioners in its correct perspective and rejected. So, there is no scope for re-appreciation of the evidence, particularly, in the absence of any kind of perversity in the appreciation of evidence. 9. In view of the arguments at the Bar, the **R.C.R. No.238 of 2018** ## **-: 5 :-** sole point which requires consideration in this revision is, whether the appreciation of evidence on reasonable cause for the closure of the shop room put forward by the 3[rd] revision petitioner is vitiated by perversity or not? The 3[rd] revision petitioner himself admitted that on the date of filing of the rent control petition, the shop room remained closed and he has conducted business in the petition schedule shop room till June, 2010. The rent control petition was filed on 25.09.2010. The courts below relied on Ext.C1 Commission Report to arrive at a finding that the 3[rd] revision petitioner ceased to occupy the petition schedule shop room for six months, immediately preceding 25.09.2010. Since the closure of the shop room on the date of filing of the rent control petition is admitted by the 3[rd] revision petitioner himself the burden is heavy on ## **R.C.R. No.238 of 2018** ## **-: 6 :-** him to prove reasonable cause, as contemplated under Section 11(5) of the Kerala Building (Lease and Rent Control) Act, 1965 (for short, the Act). The above view is supported by the decision of this Court in _**Rajagopalan v. Gopalan**_ [2004(1) KLT SN 54 (Case No.70]. 10. It is the case of the 3[rd] revision petitioner that the closure of the shop room was due to the critical illness of his mother and wife. As regards the illness of his wife, it has come out in evidence that his wife is employed in Postal Department and she was on leave from 01.06.2010 to 31.08.2010. It is to be remembered that the shop room remained closed on 25.09.2010, though his wife joined duty on 01.09.2010. Therefore, the courts below are justified in discarding the evidence of the 3[rd] revision petitioner, to the effect that the ## **R.C.R. No.238 of 2018** ## **-: 7 :-** shop room remained closed on 25.09.2010 on account of the illness of his wife. As rightly observed by the courts below, had it been the real cause for the closure of the shop room, certainly, he could have opened the shop room on 01.09.2010, the day on which his wife joined duty. 11. As regards the illness of his mother, it has come out in evidence that his mother was suffering from cancer, for the past 13 years. Even during the lifetime of the original tenant, his father, she was suffering from cancer. It is admitted by the 3[rd] revision petitioner that the father of the revision petitioners died on 25.11.2008 and till his death, he was conducting the business in the shop room, though his mother was suffering from cancer for the last more than 13 years. It is to be borne-in-mind that the 3[rd] ## **R.C.R. No.238 of 2018** ## **-: 8 :-** revision petitioner is not only the child of the deceased original tenant. Further, it has come out in evidence that even during the lifetime of his father, his mother was undergoing treatment for cancer and during that period, his father carried on the business in the petition schedule shop room. No evidence has been adduced to prove that his presence was necessary for the treatment of his mother, though his mother has other children. In the absence of such evidence, the Appellate Authority is justified in concluding that continuous closure of the tenanted premises was not necessary for the effective treatment of the mother. 12. In the above analysis, we find that there is no perversity in the appreciation of evidence with respect to the reasonable cause put forward by the revision petitioners for the closure of the shop ## **R.C.R. No.238 of 2018** ## **-: 9 :-** room for six months, immediately preceding the presentation of the petition. The courts below have rightly appreciated the evidence on record, both oral and documentary in its correct perspective. In the absence of any kind of perversity in the appreciation of evidence, we are not inclined to interfere with the concurrent findings of the courts below. 13. The learned counsel for the revision petitioners sought for sometime to remove the furniture from the petition schedule shop room. The learned counsel for the respondent submits that reasonable time can be given to remove the furniture and other other articles from the petition schedule shop room. 14. Having regard to the facts and circumstances of the case, the revision petitioners ## **R.C.R. No.238 of 2018** ## **-: 10 :-** are given two months time to vacate the tenanted premises on the following conditions: - _(i) The respondents in the Rent Control Petition shall file an affidavit within a period of two weeks from the date of receipt of a copy of this order, expressing an unconditional undertaking that the petition schedule building will be vacated within two months, from today_ - _(ii)The respondents/tenants shall deposit the entire arrears of rent, if any, in the Rent Control Court or Execution Court, as the case may be, within a period of two weeks from the date of receipt of a copy of this order and shall continue to pay the rent without default._ - _(iii) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically_ **R.C.R. No.238 of 2018** ## **-: 11 :-** _repealed and the petitioner/landlord will be at liberty to proceed with the execution of the eviction order._ The rent control petition is dismissed accordingly. All pending Interlocutory Applications will stand closed. Sd/- **K. HARILAL, JUDGE** Sd/- **ANNIE JOHN, JUDGE** DST //True copy// P.A. To Judge